The Divisional Controller vs Kumari. Pooja D/O Suresh Kotiwale
2021 Latest Caselaw 3770 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 10 T H DAY OF NOVEMBER, 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 M.F.A.No.22387/2010
          C/W M.F.A.Nos.22388, 22390 OF 2010
             AND M.F.A.No.24647/2012 (MV)

IN MFA No.22387/ 2010

BETWEEN:

THE DIVISIONAL CONTROLLER
NWKRTC, CHIKODI DIVISION,
CHIKODI, REP.BY CHIEF LAW OFFICER,
NWKRTC, GOKUL ROAD, HUBBALLI- 580030.
                                             ...APPELLANT
(BY SMT.SHEBHA KHANAPUR, ADV OCATE F OR
 SRI. SUNIL S .DES AI, ADV OCATE)

AND

1 .    KUMARI. POOJA D/ O SURESH KOTIW ALE
       AGE: 23 YEARS , OCC: STUD ENT,
       R/O ANKALI , TA L: CHIKODI,
       DIST: BELA GAVI.

2 .    MASTER PRASANN A S/O SURES H K OTIWALE
       AGE: 19 YEARS , OCC: STUD ENT,
       R/O ANKALI , TA L: CHIKODI,
       DIST: BELA GAVI.
                                         ...RESPOND ENTS

(BY SRI. S.M .KALWAD, ADV OCATE)

    THIS MFA IS FILED U/SEC.173( 1) OF M.V. ACT , 1988,
AGAINST THE JUDGMENT AND AWARD DATED 22-01-2010
                            2




PASSED IN MVC NO.3398/ 2006 ON THE FILE OF THE
PRL.CIVIL J UDGE (SR.DN.) AND MEMBER, MACT, BELAGAVI,
AWARDING THE COMPENSATION OF RS.7,98,500/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DA TE OF
PETITION TILL REALISATION.

IN MFA No.22388/ 2010

BETWEEN

1.    THE DIVISIONAL CONTROLLER
      NWKRTC, CHIKODI DIVISION,
      CHIKODI-591201.

2 .   THE DIVISIONAL MANAGER,
      THE UNITED INDIA INSURANCE CO. LTD.,
      DIVISIONAL OFFICE, MARUTI GA LLI ,
      BELAGAVI- 590016.
                                         ...A PPELLANTS
(BY SMT.SHEBHA KHANAPUR, ADV OCATE F OR
 SRI. SUNIL S .DES AI, ADV OCATE)

AND

1.    KUMARI. POOJA D/ O SURESH KOTIW ALE
      AGE: 23 YEARS , OCC: STUD ENT,
      R/O ANKALI , TA L. CHIKKODI,
      DIST: BELA GAVI.

2.   MASTER PRASANN A S/O SURES H K OTIWALE
     AGE: 19 YEARS , OCC: STUD ENT,
     R/O ANKALI , TA L. CHIKKODI,
     DIST: BELA GAVI.
                                       ...RESPONDENTS
(BY SRI S .M.KALW AD, ADV OCATE)

     THIS MFA FILED U/S 173( 1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED 22-01-2010
PASSED IN MVC NO.3399/2006 ON THE FILE OF PRL.CIVIL
JUDGE (SR.DN) A ND MEMBER, MACT, BELA GAVI, AWARDING
THE COM PENSATION OF RS .11,57,000/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
                             3




IN MFA No.22390/ 2010

BETWEEN

THE DEPUTY GENERAL MANAGER
NWKRTC, GOKUL ROAD, HUBBALLI ,
BY ITS DIVISIONA L CONTROLLER
BELGA UM DIVISION, BELAGAVI- 560016,
REP.BY CHIEF LAW OFFICER, NWKRT C,
HUBBALLI-580030.
                                            ...A PPELLANT

(BY SMT.SHEBHA KHANAPUR, ADV OCATE F OR
 SRI. SUNIL S .DES AI, ADV OCATE)

AND

1.    SMT.PUSHPA W/O RAYAGOUDA PATIL,
      AGE: 33 YEARS , OCC: HOUS EHOLD WORK,
      R/O ANKALI , TA L. CHIKKODI-591201,
      DIST: BELA GAVI.

2.    SOUMYA D/O RAYA GOUDA PATI L,
      AGE: 5 YEA RS, OCC: NIL,
      REST: - D O -
      (SINCE R2 IS MINOR R/BY NATURAL
      GUARDIAN MOTHER R1)

3.    SRI. S URESH S/O DUNDAPPA KOTIW ALE
      SINCE DEAD BY HIS LEGAL HEIR

3A.   POOJA D/ O S URES H KOTIWALE
      AGE: 26 YEARS , OCC: STUD ENT,
      R/O ANKALI , TA L. CHIKKODI-591201,
      DIST. BELAGAVI .

4.   THE DIVISIONAL MANAGER
     THE UNITED INDIA INSURANCE CO. LTD.,
     DIVISIONAL OFFICER, MARUTI GA LLI ,
     BELAGAVI- 590016.
                                         ...RESPONDENTS
(BY SRI AKSHAY K ATTI, ADVOCATE F OR R1;
 R2 MINOR R/ BY R1;
                            4




SRI S .M.KALWAD , ADVOCATE F OR R3(A),
SRI S .S.K OLIWAD , ADV OCATE FOR R4)

     THIS MFA FILED U/S 173( 1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED 22-01-2010
PASSED IN MVC NO.234/ 2007 ON THE FILE OF PRL.CIVIL
JUDGE (SR.DN) A ND MEMBER, MACT, BELA GAVI, AWARDING
THE COM PENSATI ON OF RS .5,57,000/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.


IN MFA No.24647/ 2012

BETWEEN:

1.    KUMARI POOJA D/ O SURESH KOTIW ALE,
      AGE: 25 YEARS , OCC: STUD ENT,
      R/O ANKALI , T Q: CHIKODI,
      DISTRICT: BELA GAVI.

2.   KUMAR PRASANNA S/O SURES H K OTIWALE,
     AGE: 25 YEARS , OCC: STUD ENT,
     R/O ANKALI , T Q: CHIKODI,
     DISTRICT: BELA GAVI.
                                       ...A PPELLANTS
(BY S.M.KA LWAD, ADVOCATE)

AND

THE DIVISIONAL CONTROLLER,
NWKRTC, CHIKODI DIVISION,
CHIKODI.
                                            ...RESPONDENT
(BY SMT.SHEBHA KHANAPUR, ADV OCATE F OR
 SRI. SUNIL S .DES AI, ADV OCATE)

     THIS MFA FILED U/S 173( 1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED 22-01-2010
PASSED IN MVC NO.3398/2006 ON THE FILE OF PRL.CIVIL
JUDGE (SR.DN) AND MEMBER, MACT, BELAGAVI , PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COM PENSATION.
                                5




     THESE APPEA LS COMING ON FOR ADMISSION THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:

                         JUDGMENT

Challenging common judgment and award dated

22.01.2010 passed by Principal Civil Judge (Sr.Dn.)

and M.A.C.T., Belagavi (for short, 'the Tribunal'), these

appeals are filed.

2. Though these appeals are listed for

admission, with consent of learned counsel for parties,

they are taken up for final disposal.

3. For the sake of convenience, parties will be

referred to as per their respective ranks before the

tribunal.

4. Brief facts as stated are that on 12.04.2006,

Suresh Kotiwale, wife-Smt.Pratibha Kotiwale, brother-

Vijay Kotiwale, brother's wife-Smt.Kaveri Kotiwale and

Rayagouda Patil were traveling in Maruti Zen Car

bearing registration No.KA-23/MA-99 from Saundatti

towards Ankali. At about 2.30 a.m. near KEB Station,

Chikodi, a KSRTC bus bearing registration No.KA-23/F-

241 came in a rash and negligent manner and dashed

against car. As a result of accident, all the five inmates

of car sustained fatal injuries and died on spot.

Claiming compensation for their untimely death, claim

petitions were filed against NWKRTC, owner of bus

under Section 166 of Motor Vehicles Act, 1988 (for

short, 'M.V.Act'). Wife and minor daughter of

Rayagouda Patil also filed separate claim petition.

Since all the claim petitions arose out of same

accident, they were clubbed together.

5. Respondent-Corporation entered appearance

and filed objections alleging that accident occurred due

to rash and negligent driving of Maruti car by its driver

and denied negligence of bus driver. It was contended

that bus driver was acquitted of the charges by

J.M.F.C. Claim petition was also opposed as being

excessive.

6. Based on pleadings, issues were framed. In

order to establish their case, four witnesses were

examined by claimants and Exhibits P1 to P36 were

marked. On behalf of respondents, one witness was

examined as RW1 and Exhibits R1 to R8 were marked.

7. On consideration, Tribunal answered issues

No.1 and 2 partly in the affirmative, issue No.3

assessing compensation of Rs.7,98,500/- and issues

No.4 and 5 by directing Corporation to pay same. While

answering issues No.1 and 2, Tribunal apportioned

negligence for causing accident in the ratio of 50%

each upon driver of car and bus driver. Assailing award

on negligence and quantum, Corporation has preferred

appeal in MFA No.22387/2010 while not satisfied with

quantum of compensation, claimants have filed appeal

in MFA No.24647/2012.

8. Sri Sunil S.Desai, learned counsel for

appellant-Corporation submitted that impugned award

passed by Tribunal was contrary to facts of case and

evidence on record. Though entire negligence in

causing accident was that of deceased car driver,

without any justification, Tribunal apportioned

negligence against Corporation bus to the extent of

50%. It was submitted that accident occurred in middle

of road. Though there was four feet space available for

car driver to take it to its left side and avoid accident,

deceased driver failed to do so and therefore

contributed to accident in entirety. On quantum of

compensation, it was submitted that though income of

deceased was stated to be Rs.50,000/-, no records

such as income tax returns, bank passbooks etc., were

produced. In the absence of acceptable proof, Tribunal

was not justified in taking monthly income of deceased

at Rs.15,000/- per month which.

9. On the other hand, Sri S.M.Kalwad, learned

counsel for claimant-appellant in MFA No.24647/2012

submitted that Tribunal had considered meager

monthly income of deceased for computation of

compensation and sought enhancement. Learned

counsel further submitted that Tribunal erred in not

adding future prospects to income of deceased and

even award under conventional heads also required

enhancement.

10. From above submissions, occurrence of

accident involving car belonging to deceased and

NWKRTC bus leading to death of claimants' father

Suresh is not in dispute. Age of deceased as 47 years

and his occupation as Medical Practitioner is also not in

dispute. Tribunal apportioned contributory negligence

between drivers of two vehicles at 50% each. Both

NWKRTC as well as claimants are challenging

apportionment of negligence as well as quantum.

Therefore, points that arise for consideration in these

appeals are:

     1.     Whether       Tribunal            was         justified      in
            apportioning            contributory             negligence
            between       drivers        of    two        vehicles       at
            50% each?

2. Whether assessment of compensation by Tribunal calls for modification as sought for?

11. Point no.1 tommon to all appeals: In order to

establish negligence against bus driver for causing

accident, claimants produced FIR, complaint, spot

panchanama, Motor Vehicle Inspector's reports and

charge sheet marked as Ex.P1 to P6 respectively. From

Ex.P1-FIR, it is seen that accident occurred on

12.04.2006 at 2.30 a.m. Complaint is registered on

same day at 4.45 a.m. by one Dhanpal Koli. Complaint

is lodged against drivers of both vehicles. From Ex.P3,

it is seen that width of road at the spot of accident is

18 feet with 5 feet kachha road on either side. The

accident spot is at the centre of road. From Ex.P4-

Motor Vehicle Inspector's report, it is seen that

NWKRTC bus suffered damage to its front right side.

Ex.P5, it is seen that entire front portion of car is

damaged. Brakes on both vehicles were found intact.

From Ex.P6, it is seen that charge sheet is filed against

deceased car driver as well as driver of bus. During its

evidence, NWKRTC marked deposition of witnesses in

criminal trial. It also produced judgment passed in

criminal case. In addition, it marked a photograph of

bus at the accident spot. Based on Ex.R1 to R8, it is

sought to be contended that accident occurred in the

middle of road due to failure of deceased car driver.

While analyzing evidence, Tribunal has stated that

approximately 4 feet road in addition to kachha road

was available to car driver on his left side to avoid

accident. Only on this reason, Tribunal concluded that

case was one of composite negligence and apportioned

liability equally between two drivers. Firstly the

deceased in this case was one of the drivers.

Therefore, accident in question cannot be termed as a

case of composite negligence. Secondly merely

describing accident as due to composite negligence,

apportionment of negligence equally cannot be

justified. While indeed there was same space available

to left side of car to avoid accident, at the same time,

the other vehicle involved being a public passenger

carrying vehicle, responsibility of driver about safety of

its passengers as well as other road users is on driver .

Especially as it is a heavy passenger vehicle. When

considered in the light of above, as accident was a

head-on-collision; it has to be held that both drivers

contributed to the cause of accident equally. The

apportionment of negligence between two drivers by

Tribunal thus be justified. Hence, no interference is

called for.

12. Point No.2 in MFA No.22387/2010 AND MFA

No.24647/2012:- On quantum of compensation,

admittedly deceased was a registered medical

practitioner aged 47 years having clinic at Ankali. He

was also working on contract basis as medical officer in

sugar factory. Apart from his contract work at sugar

factory, he would have practiced at his clinic and

earned income. Ex.P12 would indicate deceased earned

Rs.1,020/- from LIC as medical examiner during 2005-

06. Though claimants have contended that deceased

was earning more than Rs.50,000/- per month, income

tax returns are not produced. Balance sheets/ledgers

of clinic and bank passbooks etc., are also not

produced. Claimants also produced cane supply

receipts for having supplied cane to sugar factory at

Ex.P13 and P14. Ex.P16 is a statement of receipts and

expenditure for the year ending 31.03.2005 attested by

Income Tax Officer, Ward No.1, Nippani. Ex.P16

indicates that for the year ending 31.03.2005, gross

professional receipts of deceased was Rs.2,49,800/-

and salary receipts Rs.1,56,409/-. Though monthly

income has not been substantiated by production of

other supporting records, entry regarding receipts from

salary in Ex.P16 corresponding with the fact that the

deceased was a registered medical practitioner

established from Ex.P8, P9 and Ex.P16 supported by

prescription slips Ex.P20 etc., would establish that

deceased had established a clinic in addition to working

on contract basis as Medical Officer. Therefore, it

would be just and reasonable to assess his monthly

income at Rs.20,000/-. The multiplier corresponding to

the age of deceased would be '13'. Claimants are

children i.e. two dependants. As per decision of the

Hon'ble Supreme Court in the case of National

Insurance Company Limited V/s Pranay Sethi and

others reported in AIR 2017 SC 5157, future

prospects at 25% has to be added to income of

deceased and deduction towards personal expenses

would be 1/3 r d . Therefore, loss of dependency would be

Rs.25,99,999/- approximated to Rs.26,00,000/-. In

addition, claimants would also be entitled to

compensation under conventional heads at Rs.40,000/-

each towards loss of parental consortium, Rs.15,000/-

towards funeral expenses and Rs.15,000/- towards loss

of estate. Since more than three years have lapsed

after decision of Pranay Sethi (supra), claimants

would be entitled to addition of 10% under

conventional heads i.e. Rs.11,000/-. Therefore,

claimants would be entitled to Rs.27,21,000/-.

13. Point No.2 in MFA No.22388/2010:-

Deceased was an Ayurvedic Medical Practitioner in

order to establish her educational qualification,

certificate issued by Ayurvedic Medical Association,

Kolhapur was produced as Ex.P25 is a registration

certificate issued by Registered Medical Practitioners

Council of India Lucknow, Uttar Pradesh authorizing

deceased to practice Ayurvedic medicine. Ex.P20-

receipts/prescription would indicate deceased was

practicing in clinic of her husband Dr.Suresh Kotiwale.

Though no records are produced to establish

income/earning, notional income of an ordinary coolie

for the year 2006 is Rs.3,750/-. Considering

qualification and avocation, income of deceased has to

be considered at Rs.7,500/-. Further future prospects

has to be added. The amount thus arrived at would

nearby be about Rs.10,000/-. Therefore, determination

would not call for interference. Point no.2 answered in

the negative.

14. Point no.2 in MFA No.22390/2010: The

deceased Rayagouda Jinnappa Patil was 46 years of

age, working as LIC agent and also as a daily wage

employee in Shri Doodh Ganga Krishna Sahakari

Sakkare Karkhane Niyamit, Chikkodi.

15. It is contended that though the income

indicated in Ex.P.29-Salary Certificate was Rs.2,091/-,

tribunal considered his monthly income at Rs.5,000/-,

therefore compensation assessed calls for reduction.

16. On the other hand, Sri. Anand Ashtekar,

learned counsel for claimant submitted that considering

fact that deceased was working in Sugar Factory,

tribunal has considered his income rightly and no

reduction is called for.

17. Learned counsel further submitted that

tribunal erred in not adding future prospects and if

future prospects are added, any excess compensation

would be duly offset and sought for dismissal of

appeal.

18. Admittedly, accident occurred on

12.04.2006. As per the norms adopted by Karnataka

State Legal Services Authority for settlement of cases

before Lok Adalath, notional income for the year 2006

would be Rs.3,750/-. As per Pranay Sethi (supra),

future prospects at 25% has to be added. On adding

the same, it would be nearly Rs.5,000/-. Apart from

above, the award under conventional head was only

Rs.37,000/-.

19. Therefore, the award in any case would not

be excessive or unjustified. Point no.2 is answered in

the negative.

20. In the result, I pass the following:

ORDER

MFA No.22387/2010, MFA No.22388/2010 and MFA No.22390/2010 are dismissed. Amount in deposit are ordered to be transmitted to the Tribunal.

MFA No.24647/2012 is allowed in part.

Claimants are held entitled for

compensation of Rs.27,21,000/- as against Rs.7,98,500/- awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% per annum from date of petition till deposit.

The directions issued by Tribunal regarding proportion of deposit and release shall apply to the enhanced compensation also.

SD/-

JUDGE

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